#Appeals Archives - Prime Legal

6 Jun

High Court of Sikkim Upheld Lower Court’s Decision and dismissed both the appeals made in case of claims made by appellant regarding delay of work by tender

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Blog #Appeals, #judgement, #SikkimHC

Case title: Union of India VS M/s M.G. Contractors Pvt. Ltd. (Arb. A. No. 1 of 2022)

M/s M.G. Contractors Pvt. Ltd. VS Union of India (Arb. A. No. 2 of 2022)

Case no.: Arb. A. No. 1 of 2022 and Arb. A. No. 2 of 2022

Dated on: 28th May, 2024

Quorum: Hon’ble. MR JUSTICE BHASKAR RAJ PRADHAN

FACTS OF THE CASE

Two connected appeals were made under Section 37 of the Arbitration and Conciliation Act, 1996 assailing the final judgment dated 27.12.2021, one filed by the Union of India and the other by M/s M.G. Contractors Pvt. Ltd.

Tender was invited by CPWD, Chungthang, for construction of ITBP road sometime in the year 2010. In response, M/s M.G. Contractors Pvt. Ltd. submitted its tender which was found to be lowest, accepted and awarded in its favour. The value of work awarded under the contract was Rs.70,65,65,490/- (Rupees seventy crores, sixty-five lakhs, sixty-five thousand, four hundred and ninety only) which was 24.55% above the estimated cost put to tender of Rs.56,72,94,653/- (Rupees fifty-six crores, seventy-two lakhs, ninety-four thousand, six hundred and fifty-three only). Twenty-four months to be reckoned from 22nd day after the date of issue of acceptance letter dated 10.09.2010 was the time allowed for carrying out the work. The stipulated date of start of work was 02.10.2010 and the date of completion was 01.10.2012. The Agreement was executed in the year 2011. The work was delayed due to various reasons and finally completed on 30.06.2015. Certain disputes arose between the parties and M/s M.G. Contractors Pvt. Ltd. invoked Arbitration Clause 25 of the Agreement. The Sole Arbitrator was appointed who entered reference vide letter dated 14.03.2020.

ISSUES

Whether the claim 7 of M/s M.G. Contractors Pvt. Ltd. Was barred to limitation?
Whether the applications by the Union of India under Sections 34 and 37 maintainable?

LEGAL PROVISIONS

Section 37 of The Arbitration and Conciliation Act, 1996

The Arbitration and Conciliation Act, 1996 Section 37 provides for filing of appeals against orders of the Court or for that matter an Arbitrator.

Article 55 of The Limitation Act, 1963

For compensation for the breach of any contract, express or implied, not herein specially provided for. Three years When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.

CONTENTIONS OF THE APPELLANT

M/s M.G. Contractors Pvt. Ltd. made 15(fifteen) claims by filing their Statement of Claims. The Union of India did not prefer any counter-claim. The total claim made by M/s M.G. Contractors Pvt. Ltd. was Rs.29,11,26,419/- (Rupees twenty-nine crores, eleven Arb. A. No.1 of 2022 4 Union of India vs. M/s M.G. Contractors Pvt. Ltd. & Arb. A. No.2 of 2022 M/s M.G. Contractors Pvt. Ltd. vs. Union of India lakhs, twenty-six thousand, four hundred and nineteen only) along with interest, GST and cost as actual.

Claim No.7 was for an amount of Rs.8,16,41,135/- (Rupees eight crores, sixteen lakhs, fourty-one thousand, one hundred and thirty-five only) claimed as due and payable for escalation compensation for period October 2012 to June 2015. Claim No.13 was for interest at the rate of 18% from due date to date of payment. Claim No. 14 was the claim for GST at applicable rate as per actual on the claim amounts.

CONTENTIONS OF THE RESPONDENTS

The Union of India filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 before the learned Commercial Court, being Arbitration Case No. 1 of 2021, in the matter of Union of India vs. M/s M.G. Contractors Pvt. Ltd. The Union of India prayed for setting aside Claim No.7 and associate interest under Claim No. 13 and associate GST under Claim No.14 Arb. A. No.1 of 2022 5 Union of India vs. M/s M.G. Contractors Pvt. Ltd. & Arb. A. No.2 of 2022 M/s M.G. Contractors Pvt. Ltd. vs. Union of India granted in favour of M/s M.G. Contractors Pvt. Ltd on the ground that it was barred by limitation. The Union of India categorically asserted “That the applicant had accepted the claim No.1,2,3,4,5,6,8,9,10,11,12,15 and associated interest under claim 13 and associated GST amount under claim 14.”

The pivotal ground on which the Union of India challenges the impugned judgment is that since the learned Sole Arbitrator had himself considered Claim No.7 as a damage claim, as such, cause of action ought to have been reckoned from the last day of hindrance, i.e., the last day of breach of contract on 30.03.2015 instead of last day of bill on 09.03.2017 as per Article 55 of the Schedule to the Limitation Act, 1963. Although, the Union of India in its statement in defence had not taken the plea of limitation, it is submitted that the Sole Arbitrator had himself held that it was a duty cast upon him to examine whether the claims were barred by limitation and further he would be examining whether each of the claims was barred by limitation. However, the Sole Arbitrator failed to examine whether Claim No.7 was barred by limitation.

COURT’S ANALYSIS AND JUDGEMENT

The court was of the view that both these appeals can be disposed of in terms of the judgment of the Hon’ble Supreme Court in Project Director, National Highways No.45E and 220, National Highways Authorities of India vs. M. Hakeem and another1 and S.V. Samudram vs. State of Karnataka and Another2. In both these judgments, the Hon’ble Supreme Court has held that Section 34 does not empower the Court to modify the award passed by the Arbitrator. The court further held that in the proceedings before the learned Commercial Court, whose judgment is impugned in Arb. A. No. 1 of 2022, the application under Section 34 of the Arbitration and Conciliation Act, 1996, was not for setting aside the Award as the Union of India categorically accepted the award of Claim Nos. 1,2,3,4,5,6,8,9,10,11,12,15 and associate interest under Claim 13 and associate GST under Claim No.14. Thus, the Union of India cannot seek the setting aside of Claim No.7 and associate interest under Claim No.13 and associate GST under Claim No.14 granted in favour of M/s M.G. Contractors Pvt. Ltd. That, in effect, would be to seek modification of the Award by the learned Commercial Court, which had no power to do so. The court was also of the opinion that in a proceeding under Section 37 of the Arbitration and Conciliation Act, 1996, it is not authorised to disturb concurrent findings of facts and law by the learned Sole Arbitrator and the learned Commercial Court.

The court therefore held that the first part of the impugned judgment of the learned Commercial Court, vis-à-vis, the challenge of the Union of India in its application under Section 34 of the Arbitration and Conciliation Act, 1996 need not be interfered with. The applications by the Union of India under Sections 34 and 37 were not maintainable. Accordingly, the court dismissed Arb. A. No. 1 of 2022. The second part of the impugned judgment, however, reflects that the learned Commercial Court on its own examined the Award minutely and modified the Award, vis-à-vis, Claim No.13. While doing so the learned Commercial Court exceeded its jurisdiction and so the court did not hesitate in setting aside the impugned judgment to the extent it modifies the Award. Accordingly, Arb. A. No. 2 of 2022 is allowed.

Both the appeals were dismissed.

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Judgement Reviewed by – Fathima Sara Sulaiman

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22 May

Delhi High Court Rulings: the eventual consequence of any penal sanction should be to reform any individual, instead of shutting him out by putting him inside for life.

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Uncategorized #Appeals, #crime, #sentence, delhi high court

CASE TITTLE: BILAL AHMAD MIR ALIAS BILAL MIR ALIAS BILLA AND ORS versus NATIONAL INVESTIGATING AGENCY NEW DELHI

CASE NO: CRL.A. 53/2023 And others

ORDER ON: 20.05.2024

QUORUM: . JUSTICE SURESH KUMAR KAIT And JUSTICE MANOJ JAIN

FACTS OF THE CASE:

The facts leading to the present appeal in question is that, All the appellants were arraigned as accused in case RC No.08/2019/NIA/DLI. the Trial Court ascertained the charges, they all pleaded guilty. They were accordingly convicted for various offences under IPC and UAPA, Such order, related to quantum of sentence, is under challenge in the present petition. However, with respect to appellant Ishfaq Ahmad Bhat (A-7), when the appeal was filed under Section 21 of the National Investigation Agency Act (NIA Act), he challenged the legality of conviction as well, contending that the Trial Court had proceeded on the alleged plea of guilt in a mechanical manner. According to him, the conviction was not sustainable on the basis of such plea of guilt. Fact, however, remains that during course of consideration of the appeal, additional affidavit was filed stating therein that the appellant was no longer desirous of challenging his plea of guilt and consequent conviction and that he was confining his appeal to the extent of sentence qua those offences for which he had been given life sentence, Thus, the scope of all the aforesaid appeals is very limited in sphere and only the aspect related to the extent or legality of the sentence is required to be seen, the prayer being that they be given minimum sentence for offence under Section 121A IPC and in relation to appellant Muzzafar Ahmed Bhat, for offence under Section 23 UAPA as well. A specific application in terms of Section 229 Cr.P.C. was also moved seeking to plead guilty, stating therein, that the accused were remorseful for the alleged acts and voluntarily seek to plead guilty, without any pressure or coercion and that they had also duly understood the consequences of their pleading guilty to the different charges. Trial Court, rightfully so, gave them time for reflection and when the matter was taken up they, again, persisted in their such plea. The charges were framed on and the contents thereof were duly explained, separately to all of them, with the prescribed sentences under the law. After understanding such accusation, contents of charges and the sentence prescribed for such offences, the appellants pleaded guilty to all such charges. It was in the aforesaid backdrop that all the appellants have been convicted and sentenced. Since the contentions raised before the court are identical in nature and since all these appeals emanate from same case,the court disposed of all these appeals by this common judgment.The Appellants, who have spent almost four years in prison, challenge the legality and extent of the sentence with respect to those offences for which they have been given maximum sentence i.e. imprisonment for life, Hence, this appeal.

LEGAL ISSUES:

Whether the quantum of sentence, awarded by the trial court is unduly harsh, as contended by the appellants?s

LEGAL PROVISIONS:

Section 23 UAPA talks about Enhanced penalties.

Section 121 IPC talks about waging, abetting or attempting to wage war against government

Section 302 IPC, talks about punishment for Murder

Section 21 of the National Investigation Agency Act

Section 229 of Cr.P.C. talks about conviction on plea of guilty

Section 375 Cr.P.C. which specifies that if any accused pleads guilty and is convicted on the basis of such plea of guilt, there shall be no appeal, except as to the extent or legality of the sentence.

CONTENTIONS OF APPELLEANT:

The appelleant through their counsel contented that, Sentencing requires application of mind to several factors, including possibility of reform, family circumstances etc. The impugned order of sentence shows no reasoning, except for the seriousness of the offence. The counsel further submits that It, nowhere, talks about any possibility of reform, It does not take into consideration their young age, their antecedents, their background and have been sentenced to life, thereby jeopardizing any chance of their rehabilitation and joining mainstream, the counsel further submits that,The impugned order on sentencing merely refers to, but does not analyse, the nature of conduct in jail or socioeconomic factors, The grant of maximum punishment, given under Section 121A of the IPC, is nothing but perverse and absurd. Even in terror cases, a distinction needs to be drawn between a mastermind and a mere follower, and the latter should be dealt with more leniently. The counsel further contented that Even as a gesture of normalisation in Kashmir affairs, it would have been just and proper to have awarded less than the maximum, particularly when no actual violence had occurred and it remained a case of mere conspiracy, with no terror act committed for which they could have been made liable.

CONTENTIONS OF THE RESPONDENT:

The respondent through their counsel, Sh. Gautam Narayan, asserted that The limited scope of the present appeal is the reduction of sentence but there is no ground to interfere as the Ld. Special Judge has taken into account all the relevant factors at the stage of sentencing, Appellants were highly radicalised Over Ground Worker (OGW) of Jaish-e-Mohammed (“JeM”), a proscribed terrorist organisation under the First Schedule of the UAPA which had carried out several terrorist acts in India, Special Judge had requisitioned the socio-economic impact report pertaining to the appellants and noted both mitigating factors, namely, their age and their family background and gravity and enormity of the accusation. Apart from Section 121A, IPC, the Special Judge has not imposed maximum sentence for any other offence, It was not a case for showing any undue sympathy which would have rather sent a wrong signal Keeping in view the twin-objectives of deterrence and correction, the reduction of the sentence might result in their joining militancy, once again, after being released.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the sides, observed that there were many offences which attracted life sentence but despite that learned Trial Court awarded sentence of rigorous imprisonment of five years for most such offences. The court also Refered to sentences imposed for commission of offences under Section 18, 18B, 19 of UAPA and Section 4 of ESA. As regards Section 122 IPC, though the maximum sentence was life, the concerned appellant has been awarded RI for 10 years, besides fine and Obviously, the issue seems to be concerning Section 121A IPC and Section 23 UAPA. The court further observed, that the appellants had pleaded guilty at the first available opportunity, without any expectation.further court observed that There is nothing on record which may suggest that they are beyond redemption, The court also observed that It is strongly believed that, more often than not, the eventual consequence of any penal sanction should be to reform any individual, instead of shutting him out by putting him inside for life. Unfortunately, there are no sentencing guidelines which may assist court in selecting the most appropriate sentence, minimum or maximum or one falling between the two. The court further observed that the Trial Court has not given any specific reason as to why it was awarding maximum punishment for offence under Section 121A IPC and for Section 23 UAPA, the court also observed that in the present case, ends of justice would be met if instead of maximum of life sentence, appellants are punished with rigorous imprisonment for ten years, which punishment is just a step below. Similarly, with respect to the Section 23 of UAPA, minimum sentence is five years which may extend to life and taking stock of the factual matrix presented before us and in view of foregoing discussion, ends of justice would be met if such sentence is also reduced to rigorous imprisonment for ten years. Consequently,the court hereby disposed of all the appeals with modification that for offence under Section 121A IPC, appellants are directed to serve sentence of rigorous imprisonment for ten years with fine of Rs. 2,000/- and to further undergo SI for a period of one year in case of default of payment of fine. In relation to Crl. A. No. 56/2023 CRL.A. 53/2023 & four other connected appeals pertaining to appellant Muzaffar Ahmad Bhat, besides above modification, sentence with respect to Section 23 UAPA is also modified and is reduced to rigorous imprisonment for a period of ten years with fine of Rs. 2,000/- and to further undergo SI for a period of one year in case of default of payment of fine. The court further held that, Other terms and monetary imposition of fine for other offences for all the appellants shall remain unaltered.The court hereby disposed off Appeals in aforesaid terms.

judgement reviewed by: Sowmya.R

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9 May

Mere smell of the alcohol in the breath Would not lead to a conclusive presumption of contributory negligence, Delhi High court

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blog #Appeals, #High Court, #insurance, #motor vehicle

CASE TITTLE:RELIANCE GENERAL INSURANCE CO LTD V.HAWA SINGH & ANR

CASE NO:MAC.APP. 107/2016

ORDER ON:08 May 2024

QUORUM: J. DHARMESH SHARMA

FACTS OF THE CASE:

The present appeal is prefered by the appellant/insurance company , Under Section 173 of the Motor Vehicles Act, 1988, challenging the judgment-cum-award dated 23.11.2015

The brief facts of the case is that the claimant/ respondent 1 sustained injuries on 07.11.2011, wherein his motorcycle was hit by a Santro car(‘offending vehicle’) driven by respondent No.2/Anil Kumar, who is the driver-cum-owner Of the offending vehicle.While the case came before the Presiding Officer, Motor Accident Claims Tribunal, on 23.11.2015 passed a judgment-cum-award directing, A sum of Rs.7,64,654/- as compensation to The claimant with interest @ 9% per annum from the Date of filing of the petition till realisation.

LEGAL PROVISIONS:

Section 173 of the Motor Vehicles Act, 1988:talks about appeals which states that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent.

CONTENTIONS OF APPELLEANT:

Learned counsel for the appellant/insurance company Vehemently urged that while the factum of the accident is not in Dispute as also the fact that the two vehicles were indeed involved in The accident, however, it was vehemently submitted that the Respondent No.1/claimant-injured was guilty of negligence since when He was examined in Sanjay Gandhi Memorial Hospital and MLC, was recorded by the doctor Attending to him that he smelled of alcohol in his breath. Having consideration to the submissions advanced by The learned counsel for the rival parties and on perusal of the Trial Court Record (TCR), plea raised by the Appellant/insurance company cannot be sustained in law.

COURTS ANALYSIS AND JUDGEMENT:

The court considered that observation made by motor accident claims tribunal wherein the respondents claims that the accident was claimed by the fault of the petitioner under influence of liquor but respondents failed to lead the evidence of the same, herefore court also observed that the procecution witness in cross-examination, denied that he had consumed liquor before the accident. However, it is borne out from the medical records MLC of respondent No.1/claimant injured that the smell of alcohol was present and it was also recorded that The patient was conscious and well-oriented.therefore the court considered that the blood sample of the Respondent No.1/claimant-injured was taken so as to test how much Alcohol was present in his blood. Further, there was no challenge in The cross-examination to his testimony that it was the driver of the Offending vehicle who was responsible for causing the accident. Hence the court opined that Mere smell of the alcohol in the breath Would not lead to a conclusive presumption that the respondent No.1/claimant was guilty of contributory negligence.

Therefore, the court opines that, issue that requires modification is the award of compensation towards the interest rate. The claim Petition was decided within three years of its filing and the Court,in Umpteen number of cases, has taken a consistent view that the interest Rate should ordinarily be 7.5% unless and until exceptional Circumstances are shown.therefore the court refered,

The Oriental Insurance Co. Ltd. V. Sohan Lal

National Insurance Co. Ltd. v. Mannat Johal

Accordingly, the court reduced the intrest rate from 9% to 7.5%, which shall be payable to the claimant from the date of filing of the petition till realization. In view of the foregoing discussion, the court hereby dismissed the present appeal. It is pertinent to mention here that the Court vide order dated 02.02.2016, had directed the appellant/insurance company to deposit the entire amount of compensation with accrued interest with the learned Tribunal within four weeks from the day upon which 60% of the amount of compensation was directed to be released to the respondent No.1/claimant. Hence, the balance amount of Compensation be released to the respondent No.1/claimant forthwith With interest. Further, the court held that since the present appeal is failing on merits, the Statutory amount of Rs.25,000/- deposited by the appellant/insurance Company shall stand forfeited to the State. The court disposed of the present appeal accordingly.

Judgement Reviewed by:Sowmya.R

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2 Apr

Appeals against the Contempt orders of Central Administrative Tribunal (CAT) available only before the Supreme Court and not High Court: Allahabad High Court

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Blog #allahabadhc, #Appeals, #Article226, #CAT, #centraladministrativetribunal, #ContemptofCourtOrders, #HighCourt, #Jurisdiction, #Section17ofAdministrativeTribunalAct, #Section19ofContemtofCourtAct, #SupremeCourt, #writpetition

Case title: Dr Brajendra Singh Chauhan & Ors. Vs Central Administrative Tribunal & Ors

Case no.: Writ Application No. – 602 of 2024

Order on: March 22nd, 2024

Quoram: Justice Vivek Kumar Birla and Justice Donadi Ramesh

Facts of the case

The petitioners who were initially appointed as Short Term Medical Officers had approached the Central Administrative Tribunal (CAT), Allahabad Bench and sought to issue an order to the respondents for their appointment as regular Assistant Medical Officers. The CAT ruled in favour of the petitioners. However, the petitioners alleging non-compliance of the order by the respondents again approached the CAT by filing a contempt petition under the provisions of the Contempt of Courts Act, 1971. The Tribunal noting a substantially compliance of the order by the respondents disposed of the application. Aggrieved by the same, the petitioners appealed before the Allahabad High Court under Article 226 of the Constitution.

The Respondent’s Counsel submitted that the writ petition is not maintainable under Article 226 by citing Section 17 of the Administrative Tribunal Act, 1985 (AT Act) in conjunction with Section 19 of the Contempt of Courts Act, 1971 (CC Act).

Legal Provisions

Article 323A – It empowers the Parliament to enact the law providing for adjudication or trial by Administrative Tribunals and specifies the jurisdiction and powers of such Tribunals including their power to punish for contempt.

Section 14 & Section 15 of the AT Act – It specifies the jurisdiction, powers and authority for the Central Administrative Tribunal and State Administrative Tribunal respectively.

Section 17 of the AT Act – It empowers the Tribunal to punish for contempt of court and exercise its power similar to the High Court with regard to provisions of the Contempt of Courts Act, 1971.

Section 12 of the CC Act – It provides Punishment for Contempt of Court.

Section 19 of the CC Act – It provides that the appeals against the orders of Tribunal shall lie as a matter of right to the Bench of at least two Judges of High Court, where the contempt order is passed by the Single Judge and it shall lie to the Supreme Court where the order is passed by the Bench.

Court’s Analysis and Judgement

The Court addressing the question of maintainability of writ petition filed before the High Court against the orders passed under the Contempt of Courts Act delved into Article 323 A, Sections 14 & 17 of the AT Act and Sections 11, 12 & 19 of the CC Act. It drew a distinction between the orders passed by the Tribunal under Section 14(1) of the AT Act and the order passed under Section 17 of the AT Act. The Bench noted that the while there is no statutory remedy of appeal available under the former, the latter provides the same by virtue of Section 19 of the CC Act. Further, it noted that since the contempt proceeding under Section 17 of the AT Act is dealt with by a bench of not less than two members, the orders passed would be appealable only before the Supreme Court. Hence, it ruled that any order or decision of the Tribunal under the Contempt of Courts Act shall be appealable only to the Supreme Court within 60 days from the date of the order.

The Court heavily relied on the precedence laid down in the cases of T. Sudhakar Prasad Vs Government of A.P. and L. Chandra Kumar Vs. Union of India and held that the orders of the Tribunal under the Contempt of Courts Act shall be appealable only before the Supreme Court and no writ petition against the same shall be maintainable before the High Court under Article 226 / 277 of the Constitution of India. Accordingly, it dismissed the present petition citing the lack of maintainability. This judgement thus, throws light on the jurisdictional scope of appeals arising from contempt proceedings under Section 17 of the Administrative Tribunals Act and clears line on the exclusive appellate jurisdiction of the Supreme Court in matters regarding contempt orders issued by the Tribunal.

Judgement Reviewed by – Keerthi K

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